Abstract

The purpose of a limitation of a right in the Bill of Rights

Section 36(1)(b) of the South African constitution requires the importance of the limitation to be taken into account in an investigation regarding the justifiability of the limitation. This article investigates section 36(1)(b). The article firstly investigates general concepts regarding the purpose of the limitation such as identification of the purpose of the limitation, the requirement that the purpose of the limitation must be lawful, the purpose of a limitation in a free and democratic society, the influence of South Africa's international obligations on the importance of the purpose of the limitation and the possibility that the purpose of a limitation can change over time in accordance with changing social opinions.
The author then sets out the public interests that the South African constitutional court accepted as important enough to justify limitation of rights in the first ten years of its existence. The furtherance of private interests also suffices as justification for a limitation of a right in the bill of rights, despite the fact that some controversy still exists regarding the "direct horizontal application" of the bill of rights to private disputes regulated by the common law.
The purpose of the limitation can be used to establish different standards for the justification of different rights and in different circumstances. The purpose of the limitation can have a dual function in this regard. Requiring prove of an important purpose can establish a strict standard for justification. An important purpose, on the other hand, can require a less strict standard for justification. This can be established by giving the legislature a wide discretion in order to choose between alternative means for the limitation.
The purpose of the limitation must always be considered in relation to the other factors in section 36(1). The importance of the purpose of a limitation for a specific case is a function of the relationship between the factors. The purpose of the limitation can be identified in isolation, but the question whether the purpose is important enough to justify the limitation in a certain case can only be answered if it is considered in relation to the other factors.